The Long Road to Reforming America's Chemical Law May Soon Be Over

Earlier this week it was announced that Senators Barbara Boxer (D-CA) and James Inhofe (R-OK) had reached an agreement on the long awaited update to the Toxic Substances Control Act (TSCA). TSCA was originally passed in 1976 and signed into law by President Gerald Ford. To say that it is outdated would be the understatement of two centuries. Reform has been a long road with many twists and turns, not the least of which is the first sentence in this paragraph.

Yes, the news was that Boxer and Inhofe had agreed on the TSCA reform law. The fact that Boxer and Inhofe have agreed on anything is news in itself, but the fact that the two of them are even mentioned in the same breath as this new law is amazing given that neither really had much to do with its development.

A quick recap. Late Senator Frank Lautenberg (D-NJ) first introduced a formal bill to reform TSCA back in 2005. It never even got a discussion in committee. Neither did his re-try in 2009. His re-try in 2013 was introduced not long before he died at the age of 89. In the intervening weeks, a bed-ridden Lautenberg joined with Senator David Vitter (R-LA) to introduce a TSCA reform bill that was light-years away from the bill Lautenberg had just reintroducd. You read that right. A Republican from the petrochemical state of Louisiana introduced a chemical control bill with the man who had been fighting to reform chemical control for a decade.

After Lautenberg's passing, Senator Tom Udall (D-NM) took over and actually worked very hard with Vitter to refine and improve the bill. After a few iterations (most of which were virulently opposed by Senator Boxer), they came out with a bill they named the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." A completely different bill was introduced in the House, but that bill was considered a joke by everyone in the know, a fact that was obvious by its unanimous passing by both parties in a House where bipartisanship is considered an act of war. The House bill was merely to have something they passed so that the committee that reconciles the Senate and House versions into a law had something to sign off on. Given that Boxer and Inhofe, the two political powerhouses in the Senate, had the final say indicates what everyone knew - that the final version is essentially the Senate version with a few more assurances that states aren't completely blocked from dealing with chemicals that EPA has yet to rule on.

Which gets us to now. The conference committee has come up with a "reconciled" version that is expected to be passed by both houses of Congress shortly. The President has indicated he will sign it, perhaps with a big ceremony at the White House. Most people are happy - Republicans, Democrats, health and safety advocacy groups, chemical trade associations, and the consultants and lawyers who will make tons of money helping their clients comply with the law.

Now here is the slap in the face. The new TSCA law won't make us safer. As the article at the link notes:

The law itself won't make us safer, but the fact that we'll be focused on identifying and prioritizing chemicals to take a closer look rather than waving our hands in the air doing nothing...well, that focus will make us safer.

So congratulations to industry for getting a law that favors them passed. Congratulations for health and safety advocacy groups for getting a law passed that at least gets us beyond the distractions of doing nothing while debating a new law. Congratulations to Congress for wasting taxpayers money and time "debating" for 10 years something that is only getting passed now because industry thinks Republicans will lose control of at least part of Congress in the fall. Sure, that sounds cynical, but not as much as thinking Republicans in Congress are doing something for the public good.

The long road to reforming TSCA is not over. Now the work begins. The EPA will have to develop a way to implement a law while continuing to lose senior staff, having their budget cut frequently, and being harassed by Republican lawmakers/lobbyists on a daily basis. It will be EPA who will figure out how to improve the health and safety evaluation process for chemicals. May they survive the success of reforming TSCA.

Senate Committee Hearing on TSCA Reform Wednesday July 31 2013

The Senate Environment and Public Work Committee, led by Senator Barbara Boxer, is holding a hearing on TSCA Reform Wednesday, July 31, 2013. Starting at 9:30 am EDT, the hearing will be held live in the 406 Dirksen Senate Building hearing room. A live webcast can be viewed when the hearing begins. The purpose of the hearing: “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” Mainly it is a mechanism for EPW Chair Boxer to address her concerns related to the bipartisan Safe Chemicals Improvement Act bill introduced by the late Senator Frank Lautenberg and Senator David Vitter. The bipartisan bill came as a surprise only a month after Lautenberg had reintroduced his Safe Chemicals Act bill. Boxer called the hearing in an effort to ensure that industry had not unduly influenced the ailing Lautenberg and gotten a death-bed commitment for an industry-friendly bill that is dramatically different than Lautenberg's own bill. Other concerns to be addressed with be the preemption provisions, which the state of California (and other states) are concerned will block any state action on toxic chemicals even if EPA does not take sufficient action to protect human health and the public. A long list of witnesses have been identified: Panel 1 Mr. Michael A. Troncoso Senior Counsel Office of the Attorney General, California Mr. H. Michael Dorsey Chief, Homeland Security and Emergency Response West Virginia Department of Environmental Protection Mr. Ken Zarker Manager, Pollution Prevention & Regulatory Assistance Section Washington State Department of Ecology Panel 2 Mr. Daniel Rosenberg Senior Attorney Natural Resource Defense Council Mr. Thomas McGarity Professor of Law University of Texas at Austin Ms. Linda Fisher Vice President of Safety, Health and Environment and Chief Sustainability Officer DuPont Mr. Stephen A. Owens of Counsel, Squire Sanders, LLP Ms. Linda Reinstein Executive Director and Cofounder Asbestos Disease Awareness Organization Ms. Robin Greenwald of Counsel Weitz & Luzxenberg Mr. Mark N. Duvall Principal Beveridge & Diamond, PC Mr. Ken Cook President and Co-founder Environmental Working Group Panel 3 Ms. Nancy Buermeyer Senior Policy Strategist Breast Cancer Fund Ms. Susan Vickers, RSM Vice President of Community Health Dignity Health Ms. Mauren F. Gorsen, Esq. Partner Alston + Bird, LLP Dr. Jonathan Borak, MD, DABT Clinical Professor of Epidemiology and Public Health Clinical Professor of Medicine Yale School of Medicine Mr. Cecil Corbin-Mark Deputy Director/Director of Policy Initiatives We Act for Environmental Justice Ms. Dorothy Felix President Mossville Environmental Action Now Mr. Andrew R. Hackman Vice President of Government Affairs Toy Industry Association, Inc. Ms. Ansje Miller Eastern States Director Center for Environmental Health For more information and the link to the live feed, go to the EPW hearing page.			3

House Committee Will Hold Hearing on TSCA Reform

Following up on the surprise introduction of a bipartisan TSCA reform bill in the Senate, the House Energy & Commerce Committee's environment and economy subcommittee has scheduled a hearing to discuss "Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact." It's unclear how whether this hearing is a counter to the Lautenberg-Vitter Safer Chemical Improvement Act bill introduced in the Senate, or the beginning of support for the measure.

The Senate is controlled by Democrats, the House by Republicans. Given that the bill was developed by Senator Vitter and the chemical industry and includes significant compromise on the part of the Democrats and environmental groups as opposed to Lautenberg's previous Safe Chemical Act bills, it's likely the House action is to pave the way for some sort of TSCA reform bill to be put into law. The bill was introduced with a dozen bipartisan cosponsors as Senator Lautenberg was living what turned out to be his final days; he died on June 3rd less than two weeks after the bill was introduced.

The hearing will take place on June 13th at 10:15 am room 2322 of the Rayburn House Office Building. More details and the invitation-only witnesses will be posted on the subcommittee's web page.

Senators Lautenberg and Vitter Announce Bipartisan Chemical Safety Improvement Act

In a surprise move, Democratic Senator Frank Lautenberg (NJ), long a champion of safer chemicals, and Republican Senator David Vitter (LA) jointly announced introduction of the Chemical Safety Improvement Act of 2013. 

The bipartisan cosponsors include: co-sponsored by U.S. Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Mary Landrieu (D-LA), Susan Collins (R-ME), Joe Manchin (D-WV), Marco Rubio (R-FL), Robert Menendez (D-NJ), and John Hoeven (R-ND).

 More details on Senator Lautenberg's website.

Reaction from the American Chemistry Council.

From the American Cleaning Institute.


From the Consumer Specialty Products Association (CSPA). CSPA also provides a table comparing the new Chemical Safety Improvement Act of 2013 with TSCA.

From Safer Chemicals, Healthy Families (a coalition of health and environmental advocates).

According to the announcement, "the Lautenberg-Vitter “Chemical Safety Improvement Act of 2013” would:

• Require Safety Evaluations for All Chemicals: All active chemicals in commerce must be evaluated for safety and labeled as either “high” or “low” priority chemical based on potential risk to human health and the environment.  For high priority chemicals, EPA must conduct further safety evaluations. 
• Protect Public Health from Unsafe Chemicals: If a chemical is found to be unsafe, the Environmental Protection Agency (EPA) has the necessary authority to take action.  This can range from labeling requirements to the full phase-out or ban of a chemical.  
•  Prioritize Chemicals for Review: The Environmental Protection Agency will have to transparently assess risk, determine safety, and apply any needed measures to manage risks.
• Screen New Chemicals for Safety: New chemicals entering the market must be screened for safety and the EPA is given the authority to prohibit unsafe chemicals from entering the market. 
• Secure Necessary Health and Safety Information: The legislation allows EPA to secure necessary health and safety information from chemical manufacturers, while directing EPA to rely first on existing information to avoid duplicative testing. 
• Promote Innovation and Safer Chemistry: This legislation provides clear paths to getting new chemistry on the market and protects trade secrets and intellectual property from disclosure. 
• Protect Children and Pregnant Women: The legislation requires EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical—a provision not included in existing law.
• Give States and Municipalities a Say:  States and local governments will have the opportunity to provide input on prioritization, safety assessment and the safety determination processes, requiring timely response from EPA, and the bill establishes a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.  

Senate Committee Approves Gina McCarthy Nomination for EPA Administrator

The Senate Environment and Public Works Committee approved Gina McCarthy's nomination to be the next EPA Administrator. After Republicans boycotted an attempted committee vote last week, eight Republicans showed up today. All eight voted against McCarthy, while all 10 Democrats voted for her. Even Democratic Senator Frank Lautenberg left his sick-bed to make the vote.

McCarthy's nomination now moves to the full Senate where she is expected to be confirmed despite Republican gamesmanship. Republican Senator David Vitter has indicated he will vote for her confirmation. The one remaining political game-playing is by Republican Senator Roy Blunt of Missouri who says he will maintain a hold on her nomination until EPA sets a schedule for release of an environmental impact statement for a site in Missouri. Of course, EPA can't release the EIS until they have an Administrator to sign it. The Administrator-nominee that Blunt is holding up.

McCarthy is the current EPA Assistant Administrator for Air and Radiation. Under her watch the EPA has issued significant air pollution regulations, which is the main reason why Republicans are holding up her nomination.

Will current efforts to reform the TSCA chemical control law actually roll back progress?

Just last week Senator Frank Lautenberg (D-NJ) reintroduced his Safe Chemicals Act and there was hope for some sort of TSCA reform. Senator David Vitter (R-LA) is expected to introduce an alternative, chemical-industry-backed, counter-bill in the next few weeks. But Richard Denison, senior scientist at the Environmental Defense Fund (EDF), believes that Senator Vitter's bill will actually roll back even the current limited authority of EPA to regulate chemicals under TSCA.

While some of this is speculation since very few people have seen Vitter's bill - he seems to have consulted primarily with only the one major chemical trade association and cut out other chemical groups, health advocates, environmentalists, and the public - Denison gleans from public statements several areas that could result in dramatic weakening of the current TSCA.

For example, rather than making it easier for EPA to request testing on chemicals with little data but apparent concern, Vitter's bill may actually make it harder for EPA to do so. According to Denison, the bill could also restrict the abilities of states to step in when the federal authorities fail, or are incapable, of taking action. There has also been widespread questioning of the risk standard proposed in the Lautenberg bill, a standard that Denison points out has been endorsed by major medical groups as necessary to protect vulnerable subpopulations, including developing fetuses and infants. The Vitter bill would also apparently make no changes to the current PMN process for new chemicals, a process that requires virtually no health and safety data be submitted in most cases.

So despite some movement on TSCA reform - the introduction of one and probably two new bills - it seems we're headed for another stalemate in which the goal is to stop TSCA reform. Again.

Denison's blog article can be found on the EDF website.

Lautenberg to push TSCA reform bill

The Philadelphia Inquirer is reporting that Senator Frank Lautenberg will try once again try to reform the nearly four decade old Toxic Substances Control Act. According to an article by Sandy Bauers published online, Lautenberg plans to introduce his newest version of the Safe Chemicals Act on Wednesday.

The Democratic Senator from New Jersey has been trying since 2005 to get passage of a TSCA reform bill. The most recent attempt in 2012 made it out of Committee on a partisan vote, only to die from lack of interest in the full Senate. Recently Republican Senator David Vitter has indicated that he was working on an alternative, chemical industry-backed, bill.

The Bauers article can be read here.

The announcement is now on Senator Lautenberg's site.

Full text of the 2013 bill is here.

A summary is here.

Safer Chemicals Healthy Families, an NGO, says the bill "much-needed legislation would protect Americans from unsafe chemicals."

Another NGO, the Environmental Working Group, also favors the Lautenberg bill.

A trade association, the American Chemistry Council, thanked Senator Lautenberg for his commitment, but indicated it was encouraged by "efforts in the Senate led by Senator David Vitter (R-LA) to develop a new proposal." Senator Vitter is expected by some to introduce a competing "industry" bill later in the month.

Another trade association, the Society of Chemical Manufacturers and Affiliates (SOCMA) issued a press release today that did not mention Lautenberg's bill specifically, but called for a more piecemeal approach through "bipartisan cooperation."

According to the summary from Senator Lautenberg's office, the bill is identical to the one passed out of Committee last summer. That bill was never taken up for debate during the limited remaining legislative calendar during the election period. By reintroducing the bill Senator Lautenberg hopes to rejuvenate the discussion of much needed TSCA reform. Given the current political climate it is likely that no action will be taken until Senator Vitter's competing bill is offered.

26 States to Consider Toxic Chemicals Legislation in 2013

As TSCA reform enters another year without any resolution, at least 26 states are considering action to enhance protection of public health and the environment from exposure to chemicals. According to the advocacy coalition, Safer States:

In 2013, we expect at least 26 states to consider legislation and policy changes that will:

• Restrict or label the use of bisphenol A (BPA) in receipts, children's products and food packaging.
• Require removal of certain toxic flame retardants from children's products, home furniture or building materials.
• Change disclosure rules so that concerned consumers will have a way to identify toxic chemicals in products.
• Encourage manufacturers to remove identified toxic chemicals in favor of safer alternatives.
• Ban cadmium, a dangerous, persistent metal that is often found in inexpensive children's jewelry.
• Ban formaldehyde from cosmetics and children's products.
• Promote green cleaning products in schools.

Safer States states that "We believe families, communities, and the environment should be protected from the devastating impacts of our society’s heavy use of chemicals. We believe that new state and national chemical policies will contribute to the formation of a cleaner, greener economy." They have also been highly critical of industry, reporting on what it sees as misplaced priorities "inside the toxic chemical industry."

So state efforts continue. At the federal level, Democratic Senator Frank Lautenberg has indicated that he will reintroduce his Safer Chemicals Act. The SCA was passed out of committee last year but never came to the Senate floor for debate or vote. The committee-passed version includes substantial changes from the original bill, including many adjustments to take into consideration concerns expressed by industry. Still, industry widely denounced the bill as unworkable, a position that Richard Denison of the Environmental Defense Fund and Andy Igrejas of Safer Chemicals Healthy Families have asserted is disingenuous at best. Industry is, however, reportedly working with Republican Senator David Vitter on what is effectively an industry-sponsored bill. It is unclear when or if Vitter's bill will be introduced, but any such bill would at least provide a counter-position to that of Lautenberg and offer opportunity for substantive debate.